Superstar Parcel Services Limited v Xplico Insurance Co. Limited; Mutemi (Suing as the Personal Representative of the Estate of Emmanuel Mutinda Mutemi - Deceased) (Interested Party) (Civil Suit E007 of 2022) [2024] KEHC 7504 (KLR) (13 June 2024) (Judgment)

Key Facts

Transaction Type

Deceased Name

Issues

• Whether there was a valid Policy of Insurance in respect of Motor Vehicle Registration No. KBK 051L at the time of the subject accident.
• Whether the defendant is liable to indemnify and/or hold the plaintiff indemnified and make good to the interested party the entire decretal sum in Mombasa SRMCC No. 2116 of 2017: Mwenda Mutemi (suing as personal representative of the Estate of Emmanuel Mutinda Mutemi) v Superstar Parcels & Chaka Shehi.

Holdings

• The court declared that the Policy of Insurance No. 080/000075/14/05/020 TPO issued by Xplico Insurance Co. Limited was valid at the time of the accident on 4th November 2014. The policy was in effect from 15th May 2014 to 14th May 2015, and the plaintiff provided prima facie evidence through the Certificate of Insurance and premium payment records. The defendant’s denial of liability was rejected as it referenced an incorrect vehicle registration (KAQ 578V instead of KBK 051L), failing to discharge its burden of proof.
• The court ruled that Xplico Insurance Co. Limited is statutorily liable under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act to indemnify the plaintiff and pay the decretal sum of Kshs. 2,317,000/= to the interested party (Mwenda Mutemi, personal representative of the deceased). The judgment in Mombasa SRMCC No. 2116 of 2017 was upheld, and the defendant was ordered to cover all associated costs and interest. The insurer’s contractual defenses were dismissed as they conflicted with the Act’s mandatory compensation requirements for third parties.

Remedies

• The court declared the insurance policy (No. 080/000075/14/05/020 TPO) issued by Xplico Insurance Co. Limited was valid at the date of the accident on 4th November 2014.
• The court ordered that all costs associated with this civil suit be borne by Xplico Insurance Co. Limited.
• The court declared that Xplico Insurance Co. Limited is legally obligated to indemnify Superstar Parcel Services Limited and fully compensate the interested party (Mwenda Mutemi, as personal representative of Emmanuel Mutinda Mutemi's estate) for the Kshs. 2,317,000 judgment sum awarded in Mombasa SRMCC No. 2116 of 2017.
• An order was issued directing Xplico Insurance Co. Limited to pay and/or make good the entire decretal sum (Kshs. 2,317,000) awarded to the interested party in Mombasa SRMCC No. 2116 of 2017, along with any amounts arising consequentially from the judgment.

Monetary Damages

Probate Status

Legal Principles

• The court applied the principle of burden of proof, requiring the plaintiff to establish the existence of a valid insurance policy. The defendant's failure to attend the hearing did not absolve the plaintiff of this responsibility.
• The court held that under Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, the insurer is statutorily obligated to pay the judgment sum to the entitled third party, regardless of policy status.

Precedent Name

• Joseph Mwangi Gitundi v Gateway Insurance Co. Ltd
• Charles Makenzi Wambua v Africa Merchant Assurance Co. Ltd & another
• Britam General Insurance Co. (Kenya) Limited v Josephat Ondiek
• Kenya Alliance Insurance Co. Limited v Thomas Ochieng Apopa
• Wamwere & Others v Attorney General
• Muthui v Directline Insurance Company Ltd & 2 Others
• Joseph Mwangi Gitundu v Gateway Insurance Co Ltd
• Isaack Wakoli v Xplico Insurance Company
• Conseslus Kipruto v African Merchant Assurance Co. Ltd & Mildred Khatenje

Key Disputed Contract Clauses

• The defendant argued the plaintiff failed to report the accident as required by the insurance policy, which they claimed was a condition precedent to liability. The court rejected this defense, emphasizing statutory obligations override contractual terms.
• The defendant contended the plaintiff did not pay the required excess amount under the policy, which they asserted was a prerequisite for indemnification. The court dismissed this, holding the insurer's statutory duty to third parties cannot be negated by contractual conditions.

Executor Name

Cited Statute

• Insurance (Motor Vehicles Third Party Risks) Act
• Evidence Act

Executor Appointment

Judge Name

Passage Text

• The plaintiff adduced credible proof that, at all times material to this suit, it was the registered and beneficial owner of Motor Vehicle Registration No. KBK 051L, Nissan Diesel, and that the said motor vehicle was involved in a road traffic accident on 4th November 2014 along the Nairobi-Mombasa Road.
• The obligation is statutory and a strict one; it cannot be shifted or abrogated by a term in the contract of insurance... the purpose for taking out an insurance policy... to cover third party risks under Cap 405 Laws of Kenya will also be defeated.
• Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405 of the Laws of Kenya is explicit that: 'If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy... the insurer shall pay to the persons entitled to the benefit of the judgment any sum payable thereunder.'

Damages / Relief Type

• Compensatory damages of Kshs. 2,317,000 awarded to the interested party for the accident.
• Declaration that the insurance policy (No. 080/000075/14/05/020 TPO) was valid at the time of the accident.
• Costs of the suit ordered to be borne by the defendant.
• Declaration that the insurer is liable to indemnify and pay the decretal sum of Kshs. 2,317,000 to the interested party.

Beneficiary Classes